Abdul-Hussain, R. v [1998] EWCA Crim 3528

EWCA-Crim
Abdul-Hussain, R. v
[1998] EWCA Crim 3528 · 1998-12-17
[1]Unless and until Parliament provides otherwise, the defence of duress, whether by threats or from circumstances, is generally available in relation to all substantive crimes, except murder, attempted murder and some forms of treason ( R v Pommell [1995] 2 Cr App R 607 at 615C). Accordingly, if raised by appropriate evidence, it is available in relation to hijacking aircraft; although, in such cases, the terror induced in innocent passengers will generally raise issues of proportionality for determination, initially as a matter of law by the judge and, in appropriate cases, by the jury.[2]The courts have developed the defence on a case-by-case basis, notably during the last 30 years. Its scope remains imprecise ( Howe , 453G-454C; Hurst [1995] 1 Cr App R 82 at 93D.[3]Imminent peril of death or serious injury to the defendant, or those to whom he has responsibility, is an essential element of both types of duress (see Southwark LBC v Williams (1971) 1 Ch 734, per Lord Justice Edmund-Davies at 746A; Loughnan , by the majority at 448 and the dissentient at 460; and Cole at page 10).[4]The peril must operate on the mind of the defendant at the time when he commits the otherwise criminal act, so as to overbear his will, and this is essentially a question for the jury ( Hudson and Taylor at 4; and Lynch at 675F. It is to be noted that in Hudson and Taylor Lord Parker CJ presided over the Court, whose reserved judgment was given by Widgery LJ (as he then was).)[5]But the execution of the threat need not be immediately in prospect ( Hudson and Taylor at 425). If in Cole the Court had had the advantage of argument, as to the distinction between imminence, immediacy and spontaneity which has been addressed to us, it seems unlikely that the second half of the paragraph at page 10 of the judgment which we have cited would have been so expressed. If, and in so far as anything said in Cole is inconsistent with Hudson and Taylor , we prefer and are, in any event, bound by Hudson an Taylor , as, indeed, was the Court in Cole .[6]The period of time which elapses between the inception of the peril and the defendant's act, and between that act and execution of the threat, are relevant but not determinative factors for a judge and jury in deciding whether duress operates ( Hudson and Taylor ; Pommell at 616A).[7]All the circumstances of the peril, including the number, identity and status of those creating it, and the opportunities (if any) which exist to avoid it are relevant, initially for the judge, and, in appropriate cases, for the jury, when assessing whether the defendant's mind was affected as in 4 above. As Lord Morris of Borth-y-Gest said in Lynch at 675F in the passage previously cited, the issue in Hudson and Taylor was "whether the threats were so real and were at the relevant time so operative and their effect so incapable of avoidance that, having regard to all the circumstances, the conduct of the girls could be excused."[8]As to 6 and 7, if Anne Frank had stolen a car to escape from Amsterdam and been charged with theft, the tenets of English law would not, in our judgment, have denied her a defence of duress of circumstances, on the ground that she should have waited for the Gestapo's knock on the door.[9]We see no reason of principle or authority for distinguishing the two forms of duress in relation to the elements of the defence which we have identified. In particular, we do not read the Court's judgment in Cole as seeking to draw any such distinction.[10]The judgment of the Court, presided over by Lord Lane CJ and delivered by Simon Brown LJ, in Martin , at 345 to 346 (already cited) affords, as it seems to us, the clearest and most authoritative guide to the relevant principles and appropriate direction in relation to both forms of duress. Subject to questions of continuance (which did not arise and as to which, see Pommell at 615D), it clearly reflects Lord Lane's judgment in R v Graham (1981) 74 Cr App R 235 at 241, which was approved by the House of Lords in Howe in 458G. It applies a predominantly, but not entirely, objective test, and this Court has recently rejected an attempt to introduce a purely subjective element divorced from extraneous influence (see Roger and Rose , 9th July 1997).[11]Clauses 25 and 26 of the Law Commission's draft Criminal Law Bill do not represent the present law. Accordingly, reference to those provisions is potentially misleading (see the forceful note by Professor Sir John Smith QC [1998] Crim LR 204, with which we agree). Applying these principles to the present case, we are satisfied that the learned judge was lead into error as to the applicable law. We have considerable sympathy with him. No submissions were addressed to him as to the distinction between imminence, immediacy and spontaneity, and he sought to follow the judgment of this Court in Cole , where, likewise, no such submissions had been advanced. In our judgment, although the judge was right to look for a close nexus between the threat and the criminal act, he interpreted the law too strictly in seeking a virtually spontaneous reaction. He should have asked himself, in accordance with Martin , whether there was evidence of such fear operating on the minds of the defendants at the time of the hijacking as to impel them to act as they did and whether, if so, there was evidence that the danger they feared objectively existed and that hijacking was a reasonable and proportionate response to it. Had he done so, it seems to us it that he must have concluded that there was evidence for the jury to consider. We stress that the prosecution did not seek to rely on a want of proportionality or to contend that duress was not capable of applying after the plane had landed at Larnaca. It follows that, in our judgment, in the light of how he was invited to approach the matter, the judge should have left the defence of duress for the jury to consider. Although the position of some of the defendants differed - in particular, Hoshan held documents which permitted him to travel freely and Maged Naji's case raised an additional argument in relation to voluntariness - we see no reason, for present purposes, to draw a distinction between the defendants. In relation to all of them, the jury should have been permitted to consider duress. We express no view as to proportionality or the continued availability of duress after Larnaca because, as we have said, these matters were not relied on before the judge and because, more significantly, there is no sufficient material before us as to the evidence on these matters. In any event, having concluded, for the reasons given, that the judge was wrong to withdraw the defence from the jury, the convictions of the appellants at the first trial must be regarded as unsafe. Their appeals are therefore allowed and their convictions quashed. For the fourth time in 5 years this Court emphasises the urgent need for legislation to define duress with precision. There remains the appellant, Sabah Naji, who was charged not with hijacking, but with conspiracy to hijack and in relation to whom, it will be recalled, the jury disagreed. In relation to his conviction on retrial, Mrs Bolton advances two principal grounds for contending that his conviction was unsafe. First, it is said that prosecuting counsel improperly introduced in cross-examination of the defendant inadmissible hearsay evidence that at his first trial the other defendants had implicated him in hijacking. At the retrial, Naji's counsel could not, as they had at the original trial, cross-examine other defendants apart from Hasan, who gave evidence on the prosecution at the retrial. The inadmissible evidence went to the heart of the case and the judge should have acceded to the defence application to discharge the jury. Secondly, the judge's warnings to the jury as to the potential unreliability of Hasan were inadequate. As to the first ground, it is necessary to explain how the cross-examination to which objection is taken came about. This is readily apparent from the transcript. In response to a question about what he had told the police as to whether he was first gagged or tied, he said at 2F:
"I told the police that but the interpreter put it in a different way and you heard before one of the hijackers, 'I told you when I went to Sabah and gagged him I saw him with his hands tied up to the back', and this is the biggest proof about what I am saying."
That was clearly a reference to evidence given at the first trial. Counsel went on at 3C:
"Q. When you gave evidence to another jury last year, you were asked questions by Mr Massih, do you remember? He asked you this: 'Of all the people on board the plane, passengers and crew, you were the only one whose mouth was gagged, were you not?' Answer from you: 'Yes.'"
Answer, at page 4A:
"First I heard from you, you read evidence and you explained to the jury. And the other thing I did not remember at that particular moment that the hijacker he said about this subject tie and gag."
At page 7D, this question:
"Did Adnan say to you, 'Don't untie him, he is a traitor, he is one of us'? A. No. Mohammed came to me and one of the hijackers who said at the previous trial, 'When the passenger start to leave I untie Sabah. When Mohammed saw Sabah untied so he came, he tie him up again so he doesn't go down with these passengers.' This is the wordings of one of the hijackers... This is evidence which you have, proof you have. Q. Do you want to tell the jury what else the other hijackers said about you in the previous trial? A. If you like you can say it. Q. You have no objection to that? A. If you would like you can put it forward and I can answer you. Q. They all said you were one of the conspirators not just Mr Hasan, and they are all lying, are they not, according to you? A. Yes."
It is apparent from that transcript that no objection to these questions was taken by the highly experienced leading counsel representing Nagi, and it also has to be borne in mind that matters were proceeding slowly because question and answer were being interpreted. Furthermore, we are told and accept, that prosecution counsel deliberately proceeded particularly slowly and looked at defence counsel to see if there was any sign of objection. Subsequently, Nagi's counsel applied for the jury to be discharged. The judge refused. No submission is made to us that, in so exercising his discretion, the judge in any way misdirected himself. It is clear from the summing-up that he did not refer to the cross-examination to which objection was taken when discharge of the jury was sought. This, it seems to us, was an appropriate exercise of discretion. To have referred to it would have been to draw attention to it. Furthermore, he specifically directed the jury that this aspect of the case was dependent on the evidence of Hasan. There is the further, final, point on this aspect that the questions to which objection is taken were not supportive of evidence against the defendant, they were directed to his credit, so that the jury would not be mislead in relation to what had transpired at the earlier trial. In the light of these matters, this ground is without substance. As to the second ground, what direction the judge gives in relation to an accomplice or a potentially unreliable witness is within his discretion (see R v Makanjoula [1995] 2 Cr App R 469). In the present case, Mr Hilliard took us to no less than eight passages in the summing-up where, in one form of words or another, the judge drew attention to matters which might render Hasan's evidence unreliable. These included a letter, the terms of which were before the jury in which Hasan admitted in evidence he had lied. The second ground therefore fails. Mrs Bolton also sought to contend that Nagi's conviction should be quashed, if the appeals of those convicted at the first trial were successful. There are several difficulties with this. First, Nagi was not convicted at the first trial. Secondly, the offence charged against him was different from that which lay against the other defendants, namely conspiracy. Thirdly, at his retrial, he did not seek to run the defence of duress and no evidence was led to support it. Although we have heard no submissions on the point, we entertain some doubt as to whether duress is capable of affording a defence to conspiracy, the essence of which is agreement not activity. But, in any event, as the defence was not raised at the retrial, it cannot afford any ground for regarding Nagi's conviction on retrial as unsafe. It is true that the conspiracy laid against him was with the other appellants whose convictions we have quashed, but they were charged with and convicted of the substantive offence of hijacking, not conspiracy. There is no reason, in our judgment, to regard Sabah Nagi's conviction as unsafe. His appeal is therefore dismissed. We will hear submissions as to the question of a retrial. (Submissions re: Retrial and question for the House of Lords which is: were the Court of Appeal (Criminal Division) right to rule that any of the appellants had available to them, at trial, the defence of duress of circumstances, if the appellant in question, at the time of committing the offence, feared imminent but not immediate death or serious bodily harm? THE VICE PRESIDENT: Taking all the circumstances of this case into account, including, in particular, that three of the defendants are due to be released from serving their sentence on 1st May next, and the history, which it is common ground reveals suffering of a high degree on the part of these defendants, in Iraq, we shall not, in the interests of justice, in this case, order a retrial, in relation to any of the appellants. So far as the question for certification is concerned, we are not averse to it, but we would like to see it in writing, and, it may be possible to deal with the matter on paper. MR HILLIARD: My Lord, would it be possible if both that aspect and if we too seek to persuade the Court to grant leave, exceptionally, I wonder whether those submissions might be in writing. THE VICE PRESIDENT: Yes, but we do not hold out any hope we shall give you leave. But you can certainly make submissions in writing. MR HILLIARD: I was just considering section 37 of the Criminal Appeal Act, the defendant on appeal by the Court. It seems to me, given that your Lordships have said there should not be a retrial, I cannot have any application; I hope that is correct. THE VICE PRESIDENT: I think it is. Mr Newman, you wanted to correct something. MR NEWMAN: It is not a marginal factual error, but one on which my Lord lay great emphasis in two passages in the judgment. In all the best to correct them I ask my Lord to look at the submissions of the transcript, page 100, the submission before the judge, page 100. MR JUSTICE ROUGIER: Volume II, page 100. MR NEWMAN: At the top of the page, dealing with Dudley, the last parts of the submission concerning Dudley and Stevens at letter D, I then turn yet again to the case of Cole and make precisely the distinction between immense and immediacy, and take the learned judge to the shorter Oxford dictionary. Over the page, the whole of the rest of that next page, is dealing in some detail, I mention it to your Lordship if you thought it might be appropriate, you might in some way or another. THE VICE PRESIDENT: Your submission at that stage was rather different from what it was at an earlier stage. MR NEWMAN: I fully appreciate what my Lord was focusing on. My submission at an earlier stage, as it developed, as is often the case.... THE VICE PRESIDENT: But very late. Mr Newman, in fairness to you, some amendment will be made to the transcript. MR NEWMAN: The last matter is this. I hesitate, my Lord. At the moment, I have appeared, as your Lordship knows, legally aided throughout. In fact my junior has been assisting throughout, on a pro bono basis. He has assisted me in what your Lordship undoubtedly can appreciate is a sparing preparation of any of the submissions in this case. Quite apart from the authority, referred to in the 70 cases photocopied, the background, there are very considerable numbers of articles and other such matters. THE VICE PRESIDENT: Seventy-five plus, we were spared. MR NEWMAN: I hope the essence was adduced in the course of submissions, but your Lordships were spared having to bother to read them. THE VICE PRESIDENT: I do not know, Mr Newman, you tell me, was this matter of the extent of legal aid not considered at an earlier stage? I know that one aspect of it was, that you should, as you have done, lead on the major point. MR NEWMAN: I asked the Registrar, and she indicated she effectively did not wish to go behind the grant of legal aid and Mr Justice Laws, who granted leave and who had originally did not renew my application.... THE VICE PRESIDENT: Laws J ordered legal aid for leading counsel. MR JUSTICE JOHNSON: I notice your junior was taking an active part. He was not sitting there as an observer, there was a bit of note passing and gown pulling. MR NEWMAN: The really active part was before the gown pulling started. THE VICE PRESIDENT: It was probably good experience for both of you. MR NEWMAN: I am not going to persist. THE VICE PRESIDENT: Mr Newman, not without a degree of hesitation, we grant your application. MR NEWMAN: I thank you on behalf of my absent junior. MR RIZA: May I repeat that application in relation to my own junior. THE VICE PRESIDENT: No, Mr Riza. I have considered that matter myself. MR RIZA: I thought it an advantage that it had been. I obviously misconstrued that. THE VICE PRESIDENT: Your position and that of your junior is very different from Mr Newman's junior.

Cited in 2 later judgments